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Wednesday, April 30, 2008

Commentary: An Analysis of Measure J

The issue of Measure J has become a key issue in the current city council election. Following the release of a letter by City Attorney Harriet Steiner, the council has been charged with the responsibility to determine whether Measure J should be renewed, amended, or repealed. By its own provision, any efforts to amend or repeal must go to the voters for approval.

While the city council has determined that they will wait until after the election to determine the future of Measure J, the council candidates have all come forward with positions on Measure J.

Sue Greenwald has simply said she wants to renew it.

Stephen Souza: "Renew it in the form that it's in."

Cecilia Escamilla-Greenwald: Renew and make it permanent.

Rob Roy: Renew it.

Don Saylor is more circumspect showing general support but: “I think you always have to keep in mind that maybe you didn’t get it right the first time. I don’t know if there should be a change to Measure J... I do know that Measure J is a part of our environment and should remain so because I think that’s what our residents want. The details of it, I don’t know yet.”

Sydney Vergis: “I’m supportive of Measure J.” She suggested that as currently written this document is not a transparent document, “it’s incredibly complex, it’s lengthy, we see central valley cities pass their own versions of measure J that are two pages.”

It is towards the latter views of Measure J that this piece is aimed. I grant Sydney Vergis that the measure is lengthy, I am not sure I am willing to grant that it is all that complex. In fact, I find it rather straight forward.

I will briefly run through the sections of this provision and perhaps those who seek to amend or shorten Measure J can better articulate what they would like to see changed.

The first portion sets forth the purpose of Measure J:
"The purpose of this Article is to establish a mechanism for direct citizen participation in land use decisions affecting City policies for compact urban form, agricultural land preservation and an adequate housing supply to meet internal City needs, by providing the people of the City of Davis the right to vote, without having to evoke referenda, on general plan land use map amendments that would convert any agricultural, open space, or urban reserve lands, as designated on the Land Use Map of the City of Davis General Plan, dated August 1, 1999, to an urban or urban reserve land use designation and on any development proposal on the Covell Center or Nishi properties.

The purpose of this Article is to ensure that the purposes and principles set forth in the City of Davis General Plan relating to voter approval, land use, affordable housing, open space, agricultural preservation and conservation are fully considered by establishing an expanded land use entitlement process for proposed conversion of properties to urban use that are designated or in agricultural or open space use. This action recognizes that continued conversion of agricultural lands to meet urban needs is neither inevitable nor necessary, and that any land use decision affecting such properties shall be subject to a public vote."
The City Council and the voters then come forward with a series of findings that include the need to protect existing agricultural and open space lands, talking about the continued urban encroachment upon those lands, the unique character of Davis and the quality of life, the General Plan policies for compact urban form, the city's work to promote the preservation of agricultural land through the general plan.

That section concludes:
"This Citizens' Right to Vote on Future Use of Open Space and Agricultural Lands Ordinance implements the General Plan and is consistent with the City’s adopted General Plan and furthers and implements the policies of the General Plan. The City finds that this Ordinance will provide for a balance between the preservation of agricultural lands and open space and the housing needs of the City."
The next section provides for voter approval and enumerates any instance of voter approval.

First, "Voter Approval of Changes to Land Use designations on the Land Use Map from Agricultural or Urban Reserve to Urban land use designations or from Agricultural to Urban Reserve land use designations."

It specifies that "any application for an amendment or modification" of land use designation to urban land use requires the following steps: establishment of the baseline project feature, approval by the city council following compliance with CEQA, and then the added step is the approval by the voters and the approval by the voters cannot take place as specified until after approval by the city council.

It also designates voter approval for "development proposals on remaining large vacant properties"--specifically naming both Covell and Nishi. And it sets forth the same guidelines on those two specific properties as it does on the general change in land use designation.

The next section lays forth exemptions. For instance land used for public schools, parks, sewage treatment, medical facilities, and a few other exemptions. It is also notes that any shift away from those land uses requires a Measure J vote. So you can produce a city park without a Measure J vote but if you want to convert that into housing, it requires a measure J vote.

It then contains a page of definitions of specific terms.

It provides a provision that other than the renewal or repeal of this measure, the cost for elections "shall be borne by the applicants of the amendment of the General Plan land use map designation." And they should be consolidated with others elections whenever feasible.

Then we have the duration which began on March 8, 2000 and:
"This Ordinance shall remain in effect until December 31, 2010, unless modified or repealed earlier by the voters of the City by majority vote. On a regularly scheduled election date prior to December 31, 2010, the City Council shall submit the provisions of this Ordinance to the voters of the City for renewal, amendment or repeal."
That is where we are right now. Finally there is the standard severability clause that if one section is found unconstitutional, the rest of the measure is still operational.


This is certainly a lengthy document. But I do not see it as extremely complex. In fact, as I read through this as a non-lawyer, I was struck by the simple fact of how straight forward the measure is.

The drafters of the measure were thorough--they created a mechanism to do exactly what they intended--put forth a mechanism by which changes to the land use designations could take place and they did it in a comprehensive way in which all terms were defined, the length of the term was explicitly laid out.

In short, we have four candidate who have pledged to essentially renew the measure as it is written. We have two candidates who have discussed the possibility of changing the ordinance.

When Sydney Vergis talks about transparency, she needs to define exactly what that means. What portions of this measure does she believe could be streamlined? What portions can be removed without changing the substance of the measure? How can this document possibly be written in two pages as she suggests? I simply do not see it, without taking away the specificity by which this measure operates, and the care it takes to lay out and define terms, determine process, and lay out procedure. It alys out definition and intent in such clarity that the intent of the drafters of this measure is clear. That takes up over a page of space, but I see no way to remove that portion from the document. There is a page of exemptions to the law.

There is one possible area where the law might be streamlined, it lays forth the procedure for Nishi and Covell specifically rather than with the previous section. Even that only adds an additional page.

That gets us to Don Saylor's point. He specifies that "you always have to keep in mind that maybe you didn't get it right the first time." That's of course always possible. But then he never specifies what we might not have gotten right. He offers up no specifics to suggest where it might have been in error. He simply suggests that we talk to commissions about it. Again this is a pretty straight-forward initiative--it requires a vote for land use changes and other than that lays out a procedure that they would have to follow without the voter approval requirement. So what is it that possibly could be changed in the application of this document? Short of specifics, Saylor's point amounts to rhetoric in search of some moderate position that doesn't really exist.

If neither Mr. Saylor or Ms. Vergis can specify applications of this that should be considered for amendment, we should perhaps assume that they are attempting to have it both ways--assuage the vast majority of voters who would vote to renew Measure J while assuaging the vast majority of their core constituency that would like nothing better than to weaken or water down the measure at the very least if they could not muster the political will and support to repeal it altogether.

In short, we must hold the candidates accountable to specify exactly what changes they would make.

---Doug Paul Davis reporting